California Assembly Bill 538

Summary

Assembly Bill 538 would require any person, organization, or company that enters into a contract for “the sale of the story of a crime for which the offender was convicted” with a person convicted of specified crimes to report it to the Office of Survivor Rights and Services.

Status

Gov. Brown signed the bill into law.

Analysis

The reporting requirement is likely unconstitutional because it focuses solely on contracts for the story of a crime, which will have a chilling effect on authors, musicians, filmmakers and others.

As the letter from the Association of American publishers noted, the bill burdens speech by a particular category of speaker on a particular subject. In Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Board, the Supreme Court struck down a New York law that required all profits from the sale of a criminal story to be given to the Crime Victims Board for the state and allows victims of the criminal to file a suit to access the account. The Court held that the law violates the First Amendment because it imposes a financial burden on speakers because of the content of their speech.

Although A.B. 538 would not require the profits to be given to the Crime Victims Board, it still places a financial burden on both the convicted individual and the publishers and creators of the material. The bill would discourage publishers, authors, filmmakers and musicians from pursuing sensitive subjects, and it singles out a convicted individual’s payments in connection with expressive activity from all other sources of income as the target for potential damages action.

History

On February 23, 2015, A.B. 538 [5] and A.B. 540 [4] were introduced as related bills on victim restitution. A.B. 540 included the language on the reporting requirement. A.B. 538 was referred to the Assembly Committee on Judiciary, and A.B. 540 was referred to the Assembly Committee on Public Safety.

On May 5, 2015, A.B. 538 was amended [6] to add the language from A.B. 540. The Assembly Committee on Judiciary recommended the bill be passed as amended. The bill was referred to the Assembly Committee on Appropriations.

On May 20, 2015, the Assembly Committee on Appropriations recommended the bill be passed. The bill was passed by the full Assembly a week later. The bill was sent to the Senate and referred to the Committees on Public Safety and on Judiciary.